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Taylor, Bean & Whitaker v. Triduanum Financial

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 4, 2013

TAYLOR, BEAN & WHITAKER MORTGAGE CORPORATION, PLAINTIFF,
v.
TRIDUANUM FINANCIAL, INC., JOHNNY E. GRIVETTE, JR., CHRISTOPHER JARED WARREN AND SCOTT EDWARD CAVELL
DEFENDANTS.

ORDER

Plaintiff has filed a request for voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2) of its claims against defendants Triduanum Financial, Inc. ("Triduanum"), Johnny E. Grivette, Jr., Christopher Jared Warren and Scott Edward Cavell. (ECF 98.) Plaintiff's complaint alleged that defendants made false representations when Triduanum applied to be a correspondent lender with plaintiff, a mortgage lender. (ECF 1.) On March 12, 2009, defendants Warren and Cavell were indicted in connection with the same events forming the basis of plaintiff's complaint. (ECF 40.) In light of the criminal proceedings, the court granted a stay of this action on July 15, 2009. (Id.) On November 28, 2012, the court ordered plaintiff to either file a dismissal or address the court's stay order within sixty days. (ECF 97.)

Federal Rule of Civil Procedure 41(a)(2) provides that if a defendant has appeared but not stipulated to dismissal, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." "A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). "'Legal prejudice' means 'prejudice to some legal interest, some legal claim, some legal argument.'" Id. at 976 (citing Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996)).

Plaintiff's motion to dismiss explains that it has been trying to contact defendants since November 21, 2012 to request that they stipulate to dismissal, but has only been able to obtain a stipulation from Warren. (ECF 98 at 2-3.) Grivette did not respond at all to plaintiff's request. (Id. at 3.) Cavell was arrested in Ireland and plaintiff is unaware of his whereabouts. (Id.) Triduanum is a suspended corporation that is prohibited from defending any lawsuit, making it unable to agree to a stipulation. (Id.) The court finds that defendants therefore have not presented a reason why they would suffer legal prejudice through dismissal.

Accordingly, plaintiff's request for dismissal is GRANTED.

20130204

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